United Kingdom House of Lords Decisions

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URL: http://www.bailii.org/uk/cases/UKHL/1911/49SLR0626.html
Cite as: [1911] UKHL 626, 49 ScotLR 626

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SCOTTISH_SLR_House_of_Lords

Page: 626↓

House of Lords.

(On Appeal from the Court of Appeal in England.)

Friday, June 2, 1911.

(Before The Lord Chancellor (Loreburn), Lords Atkinson, Shaw, and Robson.)

49 SLR 626

Kitchenham

v.

Owners of S.S. “Johannesburg.”

Subject_Master and Servant — Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 1 — “Accident Arising Out of and in the Course of the Employment” — Seaman Returning to Ship — Lawful Absence.
Facts:

A sailor who had gone on shore, with leave, upon his return reached the quay alongside of which his ship was lying. The gangway which was the access to his ship was properly lighted. There was no evidence whether he reached the gangway, but he fell into the water between the quay and the ship, where his drowned body was afterwards found.

Held that, although there was an accident in the course of the sailor's employment, there was no evidence that it arose out of this employment and his widow was not entitled to compensation.

Headnote:

A seaman was drowned under circumstances stated supra in rubric. His widow made a claim against his employers for compensation, which was sustained by the County Court Judge. The award of compensation was set aside by the Court of Appeal ( Cozens-Hardy, M.R., Fletcher-Moulton, and Farwell, L. J.)

The widow appealed.

At the conclusion of the argument for the appellant their Lordships gave judgment as follows:—

Judgment:

Lord Chancellor (Loreburn)—I think that this appeal fails. It is another of the very numerous cases in which the question is whether the accident arose out of and in the course of the workman's employment—words, it is admitted, of inexhaustible variety of application according to the nature of the employment and the character of the facts proved. The facts in each case are infinitely different, and if we are on each argument to discuss and differentiate them one from another, judgments in courts of law would be interminable and would lead rather to confusion than to enlightenment. I am only going to say that I agree with Fletcher-Moulton, L.J. In my view he states correctly the result of the decision in this House in the case of Moore v. Manchester Liners, Limited, 1910, 48 S.L.R. 709, [1910] AC 498. In the present case we are to say, first, whether this accident was in the course of the employment. I think that it was. The return of this man to his ship was in the course of his employment. We are next to say, Did the accident arise out of his employment? I think not. Upon the findings of fact which the County Court Judge states, while at the same time giving his view of the law, I think that it arose from a risk common to everyone—namely, falling from a quay into the water—and was not specially connected with the workman's employment.

Lords Atkinson, Shaw, and Robson concurred.

Appeal dismissed.

Counsel:

Counsel for Appellant— E. M. Pollock, K.C.— S. J. Duncan. Agents— John J. Hands & Lindo, Solicitors.

Counsel for Respondents— Atkin, K.C.— Alexander Neilson. Agents— Botterell & Roche, Solicitors.
1911

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